Open and Shut
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Under the Open Rec ords law a citizen has the right to examine public records. That’s not the way it is in Selma.
Although the accompanying story began as an investigation into a speed trap, it developed into a full-fledged test of Texas’ new Open Records Law replete with indications of governmental misbehavior by Selma’s city officials. The result has been a case study of the difficulties a citizen can experience in obtaining access to public records that are open to him by law.
When the Legislature passed the Open Records Law in 1973, it affirmed the public’s right to see most state and local records and supplied a mechanism by which the citizen, stymied by bureaucratic resistance, could appeal to the Attorney General for support. Among other things, the law provides that a citizen need only identify himself and tell the appropriate agency what records he desires to see; the agency is expressly forbidden to interrogate him further about why he wishes to see them. Texas Monthly chose to test this method when it asked to inspect Selma’s budget, court docket, and other documents that might reveal whether a speed trap existed there. The results were not encouraging for anyone who believes that a citizen should get such information without having to know, and use every legal weapon at his disposal. But without the Open Records Law, for all its flaws, it is unlikely he could get anything at all.
What is Selma doing with all that money?
Every town in Texas is required by law to adopt a budget annually and file copies with the clerk of its county and the comptroller in Austin. Article 689a-13 sets forth in detail the information these budgets must contain. Since its incorporation in 1964 the city of Selma has not filed its budget in either place, for any year. When we asked City Administrator T. H. Holland for a copy, he first indicated that the town had no budget. “We use auditor’s reports and that’s it,” he said.
When questioned further, Holland said the auditor’s report was “filed up in Austin.” With whom? “I really couldn’t tell you… Uh, what do you need the budget for?” Told that we wished to look over it, he responded, “Well, yeah, how about telling me the nature of this thing? You’re talking about a lot of work for us and we’d kind of like to know what we’re doing it for.”
Holland said that the preparation of the projected budget would probably begin “before the first of the year” and be completed “a couple of weeks before March 30, 1975.” What about copies of last year’s, or the current one? “I can’t give you last year’s; I wasn’t here then. As far as I know they were using auditor’s reports and that’s it.” Holland had given the same story (this-year’s-isn’t-ready—I-wasn’t-here-last-year—come-back-next-year) to two San Antonio Express reporters who sought to examine the budget last December.
Texas Monthly, taking the position that any competently managed city would prepare budgets as a matter of course, and noting that all cities are required by law to maintain them, filed a written request for Selma’s budgets under the Open Records Law. The City Attorney responded by asking the Attorney General of Texas, for an opinion as to whether Selma was obligated to “conduct a search of old records” to supply this information. Some of the budget data, he said, “are not readily available, or may not be available at all.”
Contradicting Holland, the City Attorney went on to say that, “We definitely understand that certain available budget information is releasable.” Precisely what this information was, he did not say. When Texas Monthly subsequently went to the Selma City Hall and requested whatever was available, we were told that nothing would be released pending the issuance of the Attorney General’s opinion.
The Court Docket
Article 45.13 of the Texas Code of Criminal Procedure requires every Justice of the peace and municipal Judge to keep a ledger, called the docket, in which he inscribes the names of accused parties, the nature and date of their alleged offenses, and the ultimate disposition of their cases including verdicts and sentences. Prompted by an abhorrence of judicial secrecy and grim memories of Star Chamber proceedings, the Anglo-American common law has long affirmed the ordinary citizen’s right to inspect this information.
When we asked City Administrator Holland for the docket, he said, “I can’t help you. Everything is up in Austin. We don’t keep anything like that down here… I’m not gonna help you out because I don’t know about any docket.” As he spoke, two secretaries in the next room were copying arrest data into the fifteen-pound clothbound dockets of Selma’s Municipal Court.
Pressed further, he declared, “As far as we’re concerned it’s a police file… Any police files here: strictly confidential… Now I wanna know who you are.” We gave our name again. “Well, fine. Well… that’s all I’m gonna say… I’d suggest you get an attorney and contact our attorney and sue us.” We explained that we had already spoken to the judge about his docket, been assured of his cooperation, and been told to come to Selma and examine it. “I don’t even know where it is,” Holland responded. “Did you get a traffic ticket out here or something?”
We explained that we never had, showed him a xerox copy of Article 45.13, and suggested that a call to the judge (who practices law in New Braunfels) would clear up any misunderstandings. “I’m not gonna take the trouble to,” Holland said. “I’m not gonna do it. It’s not my job to… If you wanna get him down here, well you-all help yourself. He’ll be here in October [for court day].”
After a call to the judge at Texas Monthly’s expense, we were ultimately allowed to see the docket for five minutes until closing time at 5 pm and promised to return another day. When we did so ten days later the Court Clerk refused, saying that the city authorities and the judge had concluded it was confidential under the Open Records Act and had requested an Attorney General’s opinion on the matter.
We then filed a complaint with the Judicial Qualifications Commission in Austin, the state agency which supervises municipal court judges, asserting our common law right to see a judicial docket regardless of any additional right we might or might not have under the Open Records law. By the next afternoon the Commission had obtained the judge’s promise that the docket would be available. “He did agree,” said a spokesman for the Commission, “and apparently whatever pressure there is, is coming from the city administration. And I think this is what’s going on: I think they have a speed trap, and they just don’t want anybody to know what the revenue aspect of that thing is. I think it’s considerable, because they said they had two officers that spent their entire time picking up people on IH-35.” When we returned to Selma, City Administrator Holland again refused to let us see the dockets despite the judge’s promised cooperation. At press time, that is where the matter stood.